Horan v O'Brien

[2021] ACTSC 323

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Horan v O’Brien

Citation:

[2021] ACTSC 323

Hearing Date:

19 November 2021

DecisionDate:

19 November 2021

Before:

Mossop J

Decision:

See [33]

Catchwords:

CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – assault occasioning actual bodily harm – offence committed while in custody – where magistrate did not exercise discretion in s 72 of the Crimes (Sentencing) Act 2005 (ACT) to introduce concurrency with existing sentence – where operation of s 118 of the Crimes (Sentence Administration) Act 2005 (ACT) means the appellant will be ineligible parole until both sentences are fully served – sentence manifestly excessive in the circumstances – appellant resentenced

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT), ss 118, 121, 129

Crimes (Sentencing) Act 2005 (ACT), ss 10, 64, 72

Cases Cited:

R H McL v The Queen [2000] HCA 46; 203 CLR 452

R v Byron; R v Earley (1992) 59 SASR 132
R v Devries [2005] VSCA 95
R v Horan [2020] ACTSC 189
R v Potts [2018] ACTSC 299
The Queen v Rappel [2019] ACTCA 11

Tracey v The Queen [2020] ACTCA 51

Parties:

Kieran Horan (Appellant)

Rowan O’Brien (First Respondent)

Sentence Administration Board (Second Respondent)

Representation:

Counsel

J Cooper (Appellant)

K McCann (First Respondent)

Solicitors

Aboriginal Legal Service (Appellant)

ACT Director of Public Prosecutions (First Respondent)

File Number:

SCA 34 of 2021

Decision under appeal: 

Court/Tribunal:             Magistrates Court of the ACT

Before:  Magistrate Campbell

Date of Decision:          17 June 2021

Case Title:  O’Brien v Horan

Court File Number:      CC21/1288

MOSSOP J:

Introduction

1. On 10 February 2020, the appellant was sentenced by Burns J to an aggregate sentence of imprisonment of two years and three months (27 months) with a non-parole period of 14 months in relation to offences of burglary, theft and damaging property: see R v Horan [2020] ACTSC 189. While in custody pursuant to those sentences, the appellant on 1 November 2020 assaulted another inmate causing him actual bodily harm. It was a premeditated, unprovoked attack on another person by five detainees. He was sentenced for that offence to a sentence of six months’ imprisonment (reduced from nine months on account of the plea of guilty). That sentence was wholly cumulative upon the earlier sentences. Because the sentence was an “excluded sentence of imprisonment” within the meaning of s 64 of the Crimes (Sentencing) Act 2005 (ACT), no non-parole period was set in relation to the sentence of six months’ imprisonment and the non-parole period associated with the existing sentence was not altered.

1. After the imposition of the sentence for assault occasioning actual bodily harm, the position of the appellant was as follows:

(a)he was subject to the earlier sentences which expired on 18 February 2022;

(b)the non-parole period expired on 18 January 2021; and

(c)the sentence for assault occasioning actual bodily harm commenced on 19 February 2022 and ended on 18 August 2022.

1. There was, therefore, on the face of the sentences, a parole period between 19 January 2021 and 18 February 2022. However, s 118 of the Crimes (Sentence Administration) Act 2005 (ACT) provided that if an offender is serving a sentence of imprisonment for which a non-parole period has not been set and the non-parole period for another sentence has ended, then the offender’s parole eligibility date is the day the excluded sentence ends. The parole eligibility date defines when an application for parole may be made under s 121 of the Crimes (Sentence Administration) Act and pursuant to s 129 of the Crimes (Sentence Administration) Act, the parole eligibility date is the earliest date upon which parole may be granted.

1. As a consequence, instead of being eligible for parole from 18 January 2021, the appellant must remain in custody until the end of the assault sentence on 18 August 2022. Thus, the effect of the assault sentence is to eliminate entirely the potential parole period of 13 months under the earlier sentences.

Ground of appeal

1. There is a single ground of appeal, that is that the sentence was manifestly excessive. Although some submissions addressed various matters which might have been relied upon as specific errors, they were only relied upon to inform the claim of manifest excess.

The proceedings below

1. Two points should be made about the proceedings below.

1. The first relates to the reasons given by the magistrate. The reasons for the magistrate were not given separately and in a single block. Rather, they must be discerned from the discussion which occurred between the magistrate and counsel for each party.

1. There are significant benefits in the orthodox approach to the giving of reasons, that is, giving them separately after having heard submissions. Giving reasons separately after having heard submissions allows the parties and a court on appeal to understand the concluded views of the magistrate on the issues that are in contest. It allows the concluded views to be distinguished from tentative views, questions or enquiries made during the course of submissions. It is often the case that judicial officers will ask questions or make suggestions during the course of submissions which do not reflect any concluded view and are simply designed to elicit submissions on a particular issue, clarify their own thoughts or assist counsel to focus their submissions on relevant issues. If reasons for the ultimate decision are not given separately, then it will be difficult or impossible for the parties or a court on appeal to work out what statements reflect concluded views and what statements reflect tentative views only. That obviously makes it much more difficult for a court on appeal to work out whether the decision, in this case an exercise of discretion, is affected by a relevant error.

1. This is not to say that separate reasons must always be given. Sometimes the issue will be minor enough or the difference between the parties discreet enough that the reasons may appropriately be discerned from the exchange between counsel and the bench. However, the imposition of a sentence of imprisonment is an occasion when reasons should be separately given, even if they expressly pick up and adopt what was said during the course of argument. The desirability of separate reasons is increased where, as here, issues of the application of uncommonly applied statutory provisions are in issue. 

10.  In the present case, the absence of clearly articulated reasons at the conclusion of the sentence proceeding made it more difficult to understand the result that the magistrate intended to achieve. It allowed submissions to be made that picked up on a variety of comments made during the course of submissions, some of which were inconsistent with others, making it more difficult to clearly understand the basis upon which the sentencing discretion was exercised.

11. The second point is the fact that the parties failed to provide adequate assistance to the magistrate in that they made no reference to s 118 of the Crimes (Sentence Administration) Act. In the context of the sentence that was imposed by the magistrate, the effect of that provision was to preclude the granting of parole at any time during the parole period for the sentences imposed by Burns J. While at some points in the transcript the magistrate appears to recognise that the consequence of imposing the sentence that she did would be to deny the appellant parole, at other points in the transcript she made comments which suggested that it may be open to the appellant to be granted parole. Plainly, for the purposes of properly exercising the sentencing discretion, it was necessary to come to a view about the operation of the relevant legislative provisions and hence the effect of the sentence for assault on the service of the existing sentence, having regard to the relationship between those sentences. Because the magistrate was not referred to s 118, her Honour was not in a position to reach a clear understanding of the effect of the sentence that was being imposed.

Awareness of the issue

12.  The transcript makes it clear that her Honour was aware of the consequences of making the order in the terms that she did but also express the view that had she not been relevantly constrained, she would have considered it appropriate that the appellant be granted parole.

1. At page 16 of the transcript, her Honour recognised that the consequence of the sentence being an excluded sentence of imprisonment was that she could not set a non-parole period. Her Honour said that if it was not for her interpretation of s 64 then she would have set a non-parole period. Counsel for the appellant drew to her Honour’s attention that a consequence of her Honour’s order would be that the appellant would be required to serve an additional 13 months in custody from January 2021 until February 2022. She therefore submitted that it would be an appropriate case in which to exercise the discretion under s 72 to direct that the sentence be served concurrently with the existing sentence. Her Honour said:

Her Honour: That would of course - if the interpretation of sections 64 is correct - thwart the intention of the legislature. I don’t think I can do that, and of course not send - one thing I was very keen on with Mr Biddle’s matter was to send a message back to other inmates at the AMC. “You will not assault a fellow inmate and expect that you will be dealt with lightly.”

Ms Skinner: Yes.

Her Honour: It was very much the suggestion that if general deterrence was ever going to work - we often use that term in a court room and know that the message isn’t being spread out in the community at all. But if somebody is sentenced for an assault on a fellow inmate and it is a stern punishment as the Supreme Court says it should be, then the message gets back to others that indeed, it is.

14.  At the conclusion of the proceedings, her Honour addressed herself directly to the appellant saying:

I note pursuant to section 72 of the Crimes (Sentencing) Act that this penalty is to be served consecutively with the existing sentence of imprisonment. I don’t want you to find this too dispiriting, but the message is to get around the jail, and you need to be one of the people who passes it on. That it’s not worth it. You are going to get sentences on top and it looks like the Crimes (Sentencing) Act might be sterner than anybody thought. It may be that there is some way of you getting parole, and I hope so because you have had enough time in custody. You have been there for 18 months already, and I don’t know that you need that much longer as a young man. But you commit the crime then you have to face the penalty unfortunately.

15.  The position appears to be, therefore, that her Honour recognised the likely operation of the Act upon the sentence that she was imposing was one which would have the effect of denying the appellant parole. She recognised that, but for the legislation, she would have set a non-parole period and that the availability of parole would have been appropriate in the circumstances of the case. She contemplated the possibility that there may be some way of getting parole and expressed the view that would be appropriate because the appellant had spent enough time in custody.

Sentencing for offences of violence committed in custody

16.  Although there may be considerable scepticism about the operation of the feedback loop that underlies the theory of general deterrence as a sentencing consideration, there is much less room for such scepticism when dealing with offences committed in prison. That is particularly so in a jurisdiction such as the Territory where there is a single prison and a single, centrally located, court system. In those circumstances, there is a much sounder basis for saying that stern sentences for prisoners who commit acts of violence within the prison will have a deterrent effect.

17.  It is very clear that courts ought to treat the need for general deterrence as a very significant sentencing consideration when sentencing for crimes of violence committed by a prisoner on another prisoner. Generally speaking, a court should deal very sternly with violence against prisoners. In this court that has been recognised in the decision in R v Potts [2018] ACTSC 299 at [18] where Murrell CJ said:

Prisoners are vulnerable when in custody. The custodial environment should be free from violence and the threat of violence. Corrections officers cannot supervise prisoners on a close, continuous basis. Further, as the facts of this case illustrate, among inmates there is a regrettable “code of silence” that applies to protect violent perpetrators. These factors mean that a court should deal very sternly with violence against prisoners.

18.  That approach is consistent with the approach adopted in other jurisdictions: in R v Byron; R v Earley (1992) 59 SASR 132 at 135 - 136, King CJ (with whom Cox and Matheson JJ) said:

Crimes committed in prison against a fellow prisoner are notoriously difficult to prove due to difficulties in obtaining witnesses who are willing to depose to what occurred. For that reason alone the courts must impose severe and deterrent penalties in the cases which can be proved. Moreover, prisoners are entitled to look to the courts for protection against violence from their fellow prisoners. They are necessarily in a vulnerable position by reason of the very circumstances of being confined in the prison. The circumstances under which they are confined deprive them to a great extent of the opportunity of taking prudent measures for their own safety and protection. They must depend entirely or very largely upon authority to protect them from violence.

19.  In R v Devries [2005] VSCA 95 at [20]-[23], Vincent JA said:

20.Persons incarcerated in our gaols are by reason of the circumstances of their confinement required to live in close proximity to each other, often for lengthy periods, and often in situations of some difficulty.  For a myriad of reasons, including the development of understandable frustrations and stresses, as well as the circumstance that a significant percentage of those imprisoned at any one time are likely to be of a violent disposition or emotionally labile, tensions will arise and the risk of violence is ever present. 

21.Notwithstanding those realities, it is no part of a sentence of imprisonment that the individual subject to it is to be required to live in fear or be subject to violent physical attack. Whatever interpersonal problems might arise, there can never be any justification for the use of violence against a fellow prisoner on the basis that he has offended in some way against prison culture by seeking the assistance of the authorities in the resolution of a problem that has arisen or in order to secure his own safety. 

22.It hardly needs to be said that our prisons must not become jungles with their own subculture in which predators can enforce their will in the confidence that those who are subject to it will be too fearful to do anything about it or in which the only practical response is to take equally violent retaliatory measures … Neither can it be accepted that there is a separate gaol culture that somehow mitigates the employment of force as a method of settling disputes.

23.Obviously the courts must play their part in endeavouring to ensure that no such situation develops and through the sentences that are handed down discourage the use of force in this way. In other words, it must be crystal clear to all concerned that the conduct of the kind in which the applicant engaged will not be tolerated and will almost certainly attract the imposition of condign punishment … 

Manifest excess

20.  The principles relating to a claim of manifest excess were recently summarised by the Court of Appeal in Tracey v The Queen [2020] ACTCA 51 at [37]-[38] and I need not set them out here.

1. In the present case, the effect of the six-month sentence was to require that the appellant spend 33 months in custody prior to being released at the end of his sentence. There was no parole period. Imposition of the six-month term had the effect of denying him the parole period of 13 months that was possible under the earlier sentence. The imposition of the six-month assault sentence therefore had the effect of imposing an additional period in custody of between six and 19 months depending on when he otherwise would have been released during his parole period. At the time the sentence was imposed (17 June 2021), the appellant was still in custody and hence the additional time that would be spent in custody as a result of the assault sentence was around 14 months (17 June 2021 - 18 August 2022).

22. Following the imposition of the assault sentence, he was granted parole by the Sentence Administration Board that was to take effect on 11 October 2021, but that grant was suspended when the operation of s 118 of the Crimes (Sentence Administration) Act was drawn to the attention of the Board. Thus, the consequence of the sentence imposed by the magistrate can now be seen to be just over 10 months’ imprisonment (11 October 2021 - 18 August 2022), although this is an underestimate as his further offending is likely to have, in the period 18 January 2021 until 11 October 2021, affected his capacity to be granted parole.

23. In my view, the sentence imposed was manifestly excessive. That results not from the term of imprisonment which itself was unduly lenient, but instead results from the relationship between that sentence and the existing sentence. That is because the imposition of the sentence in this way extinguishes the potential for a grant of parole which existed under the existing sentence. The imposition of such a sentence was contributed to by an apparent view that to allow a degree of concurrency would necessarily “thwart the intention of the legislature” as expressed in s 72 of the Crimes (Sentencing) Act. In my view, s 72 while clearly emphasising the need to deny leniency to persons who commit offences while in custody, does not compel the exclusion of rehabilitation as a sentencing purpose or necessarily deny the capacity for the court to structure a sentence in a way which permits a period of supervision in the community. Given the exclusion of the provisions that allow the imposition of a non-parole period, the capacity to allow some concurrency between sentences in s 72 is one of the few tools available to achieve an appropriate overall sentence. While in cases involving the imposition of sentences for multiple offences, some of which are excluded offences, there is more opportunity to structure the order of sentences in a way that achieves an appropriate overall sentence, in a case like this where a single sentence is to be imposed upon an existing sentence, there is much less flexibility. Section 72 becomes a more important tool. As pointed out in The Queen v Rappel [2019] ACTCA 11 at [23]-[24], if concurrency is to be introduced it should only be done where there is a proper reason for departing from the statutory purpose embodied in s 72. However, the discretion exists and whether or not and the extent to which it is to be exercised will be dependent upon the particular circumstances of the case.

Resentence

24.  The offence was committed jointly with four other offenders. It included the appellant kicking the victim twice to the upper body and once to the lower body and the victim being slashed and kicked by three of the other offenders. The assault lasted 40 seconds. Following the offending, the appellant boasted about his involvement in violent assaults.

25.  The appellant is 22 years old. He had a difficult upbringing including spending time in the care of the Department of Community Services. He had an early introduction to drugs. He commenced using cannabis from the age of nine. He commenced using methamphetamine at the age of 13 years, using it intravenously from the age of 14 years. Prior to being incarcerated in June 2019, he was using methamphetamine daily. He used heroin at the age of 19 years for a period of six months. He has had very limited employment in his adult life. He is assessed by the author of the pre-sentence report dated 15 June 2021 as being at a medium to high risk of general reoffending. His primary risk factors are illicit substance use, mental health issues, his attitude to offending and unemployment. His personal circumstances as at 10 February 2020 are described in some more detail in Burns J’s sentencing decision. He has a significant criminal history which includes offending in the ACT, New South Wales and Victoria. The offending does not include violence. However, in relation to this offending, he told the author of the pre‑sentence report that he knew the victim from the community, had received information regarding offences the victim had allegedly committed and took it upon himself to retaliate.

26.  Because the sentencing exercise involves a single sentence and an existing sentence the structure of which is fixed, the resentencing exercise is difficult. The simplest approach would be to shift the assault sentence back so that the end date gives rise to a total overall sentence of full-time custody which is appropriate. The difficulty with that approach is that unless that end date is shifted well within the parole period of the existing sentence, the position will remain that the appellant will have no period of supervised conduct within the community. For a young man with a long history of drug abuse, that would be an inappropriate outcome. On the other hand, to shift the end of the assault sentence far enough back so as to achieve a parole period after the conclusion of that sentence would be to deny adequate consequences to the assault sentence.

27.  In my view, the appropriate way in which to cut the Gordian knot is to consider what would be an appropriate sentence in the absence of constraints upon the structure of the sentence. That sentence would have to appropriately reflect the legislative policy that involves denial of leniency to persons who commit offences in prison, yet also adequately address the other purposes of sentencing.

28. The starting point must involve the length of the assault sentence. The sentence of six months’ imprisonment was arrived at by reference to a sentence imposed upon one of the appellant’s co-offenders. As a magistrate in the present case made clear, that sentence was imposed without reference to the principles applicable to the sentencing of prisoners who commit acts of violence in prison. It also appears to have been imposed without reference to the fact that the sentence was an excluded sentence of imprisonment. It was imposed without an understanding of the effect of s 118 of the Crimes (Sentence Administration) Act. The approach adopted by the magistrate in the present case was to simply impose a sentence of the same length as had been imposed upon the co-offender. In my view, having regard to the failure to take into consideration the matters to which I have referred means that the sentence imposed upon the co-offender involved specific errors which are likely to have lead it to be erroneously lenient. In those circumstances the sentence should be given less weight than would ordinarily be given when considering issues of parity. In the present case, in my view, the appropriate starting point is a sentence of 12 months’ imprisonment reduced to 9 months on account of the plea of guilty.

29. If served cumulatively upon the existing sentence that would result in an overall sentence of three years imprisonment (existing sentence of 27 months, assault sentence of nine months). Having regard to the fact that offending in prison ought to be dealt with in a manner that achieves deterrence of others, it would be appropriate if the appellant was required to spend two years in full-time detention and be the subject of parole or supervision for a period of one year. That, in my view, gives appropriate weight to all relevant sentencing considerations and is not inconsistent with the legislative policy which underlies ss 64(2) and 72.

30. It is possible to achieve such a sentencing outcome that is generally consistent with this scheme within the constraints of ss 64 and 72 of the Crimes (Sentencing) Act. That is, by recognising the fact that pursuant to the existing sentence the appellant has now spent just over two years in custody and, having regard to that fact, conditionally suspending the assault sentence. While, outside the context of the existing sentence and the legislative provisions that apply to the assault sentence, the suspension of the assault sentence would be plainly inappropriate having regard to the objective gravity of the offending, when considered in the unusual context of the present case it achieves, as outlined above, an appropriate sentencing outcome. It allows the appellant to be granted parole but substantially extends the period during which he is subject to supervision and leaves hanging over him a very significant period of imprisonment if he fails to comply with the conditions of the good behaviour order associated with the suspended sentence. That provides every available incentive for his rehabilitation in the community.

31.  Having regard to the fact that the sentence for the assault was, even though suspended, to be increased, prior to the giving of these reasons the appellant was given notice of the court’s tentative conclusion and an opportunity to be heard: see R H McL v The Queen [2000] HCA 46; 203 CLR 452 at [125]-[127]. He did not wish to be heard against the imposition of such a sentence and wished to proceed with the appeal.

32. Counsel for the respondent raised the question of whether s 118 of the Crimes (Sentence Administration) Act would operate in such circumstances to defer the potential parole date until after the conclusion of the suspended sentence or the good behaviour order associated with it. That is a possible interpretation because a suspended sentence could be interpreted as a “sentence of imprisonment” within s 118(2). However, in my view, notwithstanding that a suspended sentence of imprisonment is a sentence of imprisonment within the scope of s 10 of the Crimes (Sentencing) Act, s 118(2) should not be interpreted to include a sentence of imprisonment which is wholly suspended. If it were so, the capacity to grant parole would be entirely defeated in a case where a suspended sentence was in existence when parole was being considered. That, in my view, would be an absurd outcome not intended by the legislation and s 118 should not be so interpreted.

Orders

33.  The orders of the Court are:

1.     The appeal is allowed.

2.     The sentence imposed on 17 June 2021 is set aside.

3.     The offender is resentenced as follows:

i.    On charge CC2021/1288 the offender is convicted and sentenced to imprisonment for a period of nine months.

ii.    That sentence is suspended upon the offender giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months with the following additional condition: he is to be on probation subject to the supervision of the Director-General and obey all directions of the Director-General for a period of 12 months or such lesser period as determined by the Director‑General.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 28 January 2022